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High v. Miller

United States District Court, E.D. New York

May 2, 2017

Lawton High, Petitioner,
Chris Miller, Respondent.



         On February 18, 2016, Lawton High (“petitioner” or “High”) petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Court. On July 24, 2012, following a jury trial, petitioner was convicted of burglary in the second degree (N.Y. Penal Law § 140.25[2]). (T. 537.)[1]Petitioner1was sentenced to a definite period of incarceration of eight years followed by five years of post-release supervision. (S. 6.)[2]2

         In this habeas petition, petitioner challenges his conviction on the following grounds: (1) the show-up identification was unduly suggestive; (2) the evidence was legally insufficient to establish his guilt of burglary in the second degree; (3) his statement was taken illegally because police lacked probable cause for an arrest; and (4) he was denied effective assistance of trial counsel. (Pet., ECF No. 1, at 19-23.) For the reasons discussed below, the petition is denied in its entirety.

         I. Background

         A. Facts

         The following facts are adduced from the petition, respondent's memorandum in opposition (ECF No. 6), petitioner's reply (ECF No. 8), and the underlying record (ECF Nos. 6-1 to 6-16).

         On March 18, 2011, petitioner and Joseph Marone (“Marone”) went to 115 Hilton Ave, a private residence in Garden City, New York, and stayed there overnight without permission or knowledge by the owner. (T. 374, 417-18.) No one lived in the home as Jeffrey Psaki (“Psaki”), the homeowner, was temporarily living in London at this time. (Id. at 372-73.) While Psaki was away his stepfather, James Costello (“Costello”), periodically checked on Psaki's home. (Id. at 379.) Neither Psaki nor Costello knew or had given petitioner or Marone permission to enter the residence. (Id. at 374.) On March 18, 2011, a representative from Psaki's home security system notified Costello that a silent alarm was triggered indicating there was low water in the boiler. (Id. at 378.) The next morning Costello went to Psaki's home, entered through the rear door, and discovered Marone crouched under the stairs in the boiler room. (Id. at 379-80.) Costello asked Marone what he was doing there and if he was alone. (Id. at 380-81.) Marone indicated he came to escape the cold and was not alone. (Id.) At this time, Costello told Marone to get his friend and leave the home. (Id.) Costello then proceeded outside via the rear door to call the police. (Id. at 381.) Once outside, Costello watched Marone and an African-American male, later identified as petitioner, exit through the front of the house and never lost sight of petitioner and Marone until the police detained them. (Id. at 381-82.)

         Garden City Police Officer Michael Buonaiuto (“Officer Buonaiuto”) responded to Costello's 911 call and arrived at 115 Hilton Avenue at approximately 7:45 a.m. (Id. at 337.) Upon arriving, Officer Buonaiuto saw petitioner and Marone, standing in the driveway of 113 Hilton Avenue, the residence next to 115 Hilton Avenue. (Id. at 338.) As Officer Buonaiuto pulled up, he witnessed petitioner throw a plastic bag into a nearby bush. (Id. at 340.) Officer Buonaiuto then ordered petitioner and Marone to the ground. (Id. at 340-41.) Police Officer Kevin Reilly (“Officer Reilly”) arrived shortly thereafter and placed petitioner and Marone in handcuffs. (Id. at 341-42.) At the direction of Officer Buonaiuto, Officer Reilly then proceeded to retrieve the discarded plastic bag in the bushes, which Officer Buonaiuto discovered contained copper piping. (Id. at 342.)

         Police Officer Rocco Marceda (“Officer Marceda”) arrived, and Costello told Officer Marceda that he saw Marone inside the boiler room and saw petitioner as he exited the home with Marone. (Id. at 358; H. 69.)[3]3 A walk-through of the house was then conducted. (H. 69.) The officers and Costello did not see any copper piping missing, but observed a toilet in the basement filled to capacity (signifying the water had been turned off), sleeping bags, and pillows. (T. 357-58, 384.) After leaving the house, Officer Marceda performed a show-up identification with Costello sitting in the passenger seat of Officer Marceda's unmarked police car. (H. 69-70.) Petitioner and Marone stood a few feet apart from each other on the sidewalk with two officers standing nearby. (Id. at 70-71.) Officer Marceda drove past petitioner and Marone twice so Costello could have an unobstructed view of them. (Id. at 70.) Costello identified petitioner and Marone as the two men in the house and said he witnessed petitioner run out of the house. (T. 383.)

         At this time, no arrest was made as Costello did not want to press charges (H. 198; T. 365.) The plastic bag was also returned to petitioner. (T. 344.)

         Detective Angelo Barone (“Detective Barone”) became involved in this matter the next day, March 20, 2011, to investigate criminal trespass, but marked the case as not needing a follow-up. (H. 84, 116.) Costello ultimately reversed his decision and decided to cooperate with the police investigation. (Id. at 198.)

         On April 29, 2011, Detective Barone advised Marone of his Miranda rights and took his written confession. (Id. at 88-89.) Marone ultimately confessed that he and petitioner knowingly entered 115 Hilton Avenue without permission with the intention to stay overnight and steal copper piping in the morning. (Id. at 96-97.) Marone stated petitioner turned off the water main triggering the silent alarm. (Id. at 97.) After Costello entered the basement, Marone and petitioner ran out of the house where they were immediately stopped by police. (Id.) Marone stated Petitioner found copper in the home's backyard, which he and petitioner took and sold. (Id. at 97-98.)

         On June 6, 2011, Detective Barone arrested petitioner in connection with this incident and advised him of his Miranda rights. (T. 407-08.) Petitioner signed a written confession stating he entered 115 Hilton Avenue on March 18, 2011 with Marone to sleep for the night with the intention to steal copper piping in the morning, and the following morning he shut off the water main to take the copper. (Id. at 417-18.) Petitioner admitted to taking one piece of copper from outside the house, which he then sold. (Id. at 418.)

         B. Procedural History

         1. State Court Proceedings

         a. Pre-Trial Hearing

         On June 18, 2012, the Supreme Court of the State of New York, Nassau County, held a pre-trial hearing to determine: (1) the admissibility and testimony of the plastic bag containing copper piping under Mapp v. Ohio, 367 U.S. 643 (1961); (2) the admissibility of petitioner's written statement subsequent to his arrest under People v. Huntley, 15 N.Y.2d 72 (1965); (3) whether the police had probable cause to arrest petitioner on June 6, 2011 regarding the March 19, 2011 incident under Dunaway v. New York, 442 U.S. 200 (1979); and (4) whether the show-up identification was unduly suggestive and therefore should be suppressed under U.S. v. Wade, 388 U.S. 218 (1967). (H. 3-7.)

         With respect to the Mapp issue, the court ruled that the People could elicit testimony concerning the bag with copper piping because probable cause existed. (Id. at 269.) In any event, the police could offer testimony as to the bag with copper piping because petitioner and Marone abandoned the bag. (Id. at 269-70.)

         On the Huntley issue, the court concluded petitioner was read his Miranda rights, understood them, waived them, and voluntarily provided a statement. (Id. at 271.)

         As to the Dunaway issue, the hearing court concluded that Costello's testimony was credible and that probable cause existed for the arrest. (Id. at 267-69.) Costello saw petitioner leaving the home, never lost sight of him until the police arrived, and accurately identified petitioner as the African-American male in the show-up identification. (Id. at 268-69.) In addition, Costello had a valid independent basis to have identified petitioner. (Id. at 272.) The fact that no arrest was made on March 19 did not diminish probable cause for the police to make an arrest at a later time. (Id. at 269.)

         Finally, on the Wade issue, the court held that the show-up identification was not unduly suggestive and Costello had an independent basis to identify petitioner. (Id. at 270, 272.)

         b. Trial and Sentencing

         After pleading not guilty to burglary in the second degree (N.Y. Penal Law § 140.25[2]), petitioner proceeded to trial by jury in the Supreme Court, Nassau County on July 16, 2012. At the close of the prosecution's case, both sides rested. (T. 453-54.) Defense counsel then made a general “application to move for a trial order of dismissal, ” regarding the sufficiency of the People's case. (Id. at 455.) The court denied this motion. (Id.) Counsel subsequently moved to dismiss the entire case, which the court also denied. (Id.) Counsel provided no specifics for either trial motion. (Id.)

         On July 24, 2012, the jury found petitioner guilty of burglary in the second degree. (Id. at 537.) On September 20, 2012, petitioner, as a second felony offender, was sentenced to incarceration for eight years followed by five years of post-release supervision. (S. 6.)

         c. Appeals

         Petitioner appealed his conviction to the Supreme Court, Appellate Division, Second Department, arguing that: (1) the People failed to prove petitioner's guilt beyond a reasonable doubt; (2) the verdict was against the great weight of the evidence; (3) the trial court erred in finding petitioner's arrest was supported by probable cause; and (4) petitioner was denied effective assistance of trial counsel. On July 30, 2014, the Supreme Court, Appellate Division, Second Department, unanimously affirmed petitioner's conviction. People v. High, 989 N.Y.S.2d 873, 873 (N.Y.App.Div. 2014).

         The court rejected petitioner's first and second arguments relating to the sufficiency of the evidence. First, the court held, pursuant to N.Y. Criminal Procedural Law § 470.05[2], that petitioner failed to preserve for appellate review his challenge to the legal sufficiency of the evidence. Id. at 874. “In any event, viewing the evidence in the light most favorable to the prosecution, ” the court found that it was legally sufficient to establish petitioner's “guilt of burglary in the second degree beyond a reasonable doubt.” Id. Furthermore, when conducting its review of the weight of the evidence the court “accord[ed] great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor.” Id. In doing so, the court concluded the guilty verdict was not against the weight of the evidence. Id.

         In rejecting petitioner's third argument that the trial court erred in finding petitioner's arrest was supported by probable cause, the Appellate Division held that the “Supreme Court properly denied the suppression of [petitioner's] statements to law enforcement officials” because “the evidence established that, on the date of the incident, police had probable cause to arrest petitioner and, therefore, probable cause existed when the complainant later cooperated with [police] in the apprehension and prosecution of [petitioner].” Id. at 873-74. Specifically, the court found that the police had probable cause because the “complainant identified [petitioner] as one of the intruders, . . . the police observed [petitioner] throw a bag into the bushes near the house, ” and the police discovered copper piping in the bag. Id. at 873.

         Finally, the court rejected petitioner's fourth argument that he was denied effective assistance of trial counsel. Id. at 874. “Since [petitioner's] conviction was supported by legally sufficient evidence” the court concluded that this claim, “based solely [on petitioner's] counsel's failure to preserve his legal insufficiency contention, ” lacked merit. Id.

         Petitioner applied for leave to appeal to the New York State Court of Appeals, which the court denied on November 24, 2014. See ...

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